On May 28, 2019, Dr. Reiner Münker (General Manager of the German Competition Authority and head of the German National Group LIDC) gave an exciting and well attended lecture on current developments in competition law at the ITM.
Dr. Münker studied law at the Justus-Liebig-University in Gießen and completed his legal clerkship in Frankfurt a. M. and Brussels. His doctorate was entitled “Copyright approval requirements for digital sampling”. Today, he is a managing member of the executive committee of the competition headquarters in Bad Homburg. We are also pleased that he will be offering a lecture on the fundamentals of advertising law at the EMU starting in the winter semester 2019/2020, which will expand the portfolio of the ITM focus area.
After a short introduction on the development of the Competition Center, Dr. Münker described the main tasks of the Competition Center as four pillars. In particular, it serves the enforcement of the law, advising its members in the area of the Unfair Competition Act, providing information and, finally, it is even active in an advisory capacity in the area of legislation. The law on unfair competition is constantly being developed in today’s age, which is why the expert advice of the staff of the Competition Authority is in particular demand.
Dr. Münker then dealt with numerous current cases. At the beginning he presented the BGH ruling of 19 April 2018 on AdBlock Plus and explained at this point why the BGH – in contrast to the OLG Cologne – does not consider this business model to be anti-competitive. According to this ruling, there is no undue influence and no anticompetitive impediment. Rather, AdBlock Plus is a marketable service which does not aim to deprive the user of advertising revenue.
Dr. Münker then addressed the highly topical phenomenon of influencers. While just a few years ago products were still being advertised on TV by celebrities such as Thomas Gottschalk or George Clooney, the advertising market today is increasingly shifting to social platforms such as Instagram or YouTube. This would enable new target groups to be reached and product sales to be increased more effectively than ever before. For an advertising mail, an influencer with approx. 1 million followers receives up to 10,000 dollars. But the Internet is not a lawless space. UWG, TMG and RStV also apply here, which increasingly leads to legal disputes. Numerous court decisions (including OLG Celle v. 08.06.2017; KG Berlin v. 08.01.2019; LG Karlsruhe v. 21.03.2019 and most recently LG München I v. 29.04.2019) have dealt with the so-called labelling obligation in recent months. The question of whether posts for which influencers do not receive any concrete consideration should also be labelled as advertising is often at the centre of these discussions. Every influencer also advertises for himself with regular postings, which is why an unpaid post is also a business act within the meaning of the UWG. However, it was questionable whether the circumstances could not reveal the advertising nature of the act, so that labelling was not necessary. This was most recently affirmed by the Regional Court Munich I in the case of Cathy Hummels (judgment of 29 April 2019 – 4 HK O 14312/18). Dr. Münker pointed out that the development in this area of unfair competition law in the coming period remains to be seen. However, a new definition of the commercial act could prove to be problematic and could have consequences for the entire UWG.
In the following, Dr. Münker reported on further cases in which the Competition Authority was also involved. For example, the non-transparent calculation of a monthly average price on Check 24 and Verivox violated the PAngV and thus also the UWG.
Finally, Dr. Münker went into some projects on a European level. As early as April 2018, the EU Commission adopted the “New Deal for Consumers”, which is intended to ensure more transparency in the network. This includes the so-called Omnibus Directive, which intends to amend four directives, including the UCP Directive. The Directive is intended to create individual legal remedies for consumers. Within the scope of the implementation, however, Germany will have a certain amount of leeway. At this point, Dr. Münker warned in particular against the creation of administrative fines. These were questionable not only with regard to the principles of determination and proportionality, as the UWG works with numerous undefined legal terms. Moreover, it was also doubtful whether the imposition of fines would make it more difficult to punish competition violations. He then promoted the work of the League for International Competition Law (LIDC).
Finally, questions were asked from the audience and the lecture also provided sufficient discussion material for the concluding champagne reception. In response to a question from Prof. Hoeren, Dr. Münker stated that one should not lose sight of the fact that the UWG not only serves consumer protection but also the protection of competitors. In this respect, the competitors in particular were the market guardians of the UWG.
We would like to take this opportunity to thank Dr. Münker once again for his exciting and varied presentation and look forward to our future cooperation.